917 F2d 27 Barela v. State of Arizona

917 F2d 27 Barela v. State of Arizona

917 F.2d 27

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. Sec. 1915(d). Neitzke v. Williams, 109 S.Ct. 1827, 1831 (1989). A complaint is frivolous "where it lacks an arguable basis either in law or fact." Id. Generally, the district court must afford a pro se plaintiff notice of the deficiencies of the complaint and leave to amend unless it is absolutely clear that the complaint's deficiencies could not be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir.1987).

4

Barela's complaint alleged that the state improperly deprived him of custody of his daughter. The district court did not err in dismissing the complaint as frivolous because the complaint lacks an arguable basis in law or fact and is not curable by amendment. Under the eleventh amendment the state of Arizona is immune from suits brought in federal court, see Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984), and the complaint's factual allegations are clearly baseless, see Neitzke, 109 S.Ct. at 1833.